There is no question that protests are dramatically on the rise. Outside of the data, one only need look at the Government Accountability Office (GAO) decisions to see it. I subscribe to this daily alert of decisions from GAO, always on the look out for protests that get sustained. Although the levels are actually falling as protest rise, I have to just shake my head at protests that get sustained as a result of an all too often fatal mistake by procurement oficials: improper discussions.
A recent GAO decision sustaining a protest illustrates this issue and procedural violations that should not occur. According to the Digest:
…Protest that agency engaged in discussions with the awardee, but not the protester, is sustained where record shows that awardee was permitted to make material changes to its quote that had the effect of rendering its original, technically unacceptable quote acceptable, but the agency did not afford protester an opportunity to revise its quote…
What basically happened here is that the General Services Administration (GSA) made the decision that discussions with this one offeror were simply clarifications, and thus did not warrant communications with all offerors. This decision regretfully happens with regularity, as contracting officers are trying to work through the process and not delay it.
Further, discussions can create significant more work for both the contracting officer and the evaluation team. The problem with these decisions is that clarifications are often not treated as the basic changes they should be. In fact, the intent may have been to correct basic errors, but they evolve into more material changes.
Certainly contracting officers are not acting in bad faith, but a cutting corner exercise nonetheless that opens protest doors needlessly.
Simply put, government officials should be very careful in communicating with some and not all offerors. Although offerors should be instructed in the solicitation that discussion items area at the government’s discretion (and to submit your best and final proposal), discussions under a “best value” Federal Acquisition Regulation (FAR) Part 15 process are normally perfunctory due to poorly written requirements, a poorly submitted proposal, or as usually is the case, both.
Best Practices for Government
Ensure that FAR Subpart 15.306 is being followed regarding communications with offerors. Discussions will occur when an agency indicates to an offeror the significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to materially enhance the proposal.
In other words, the “acid test” for deciding whether discussions have been held is when an offeror has been provided the opportunity to modify its proposal, and improve the chances of contract award. Keep this in mind regarding communications.
Further, do not pick and choose the types of weaknesses and deficiencies that are communicated with the offeror. This is another fatal flaw that I have seen with alarming frequency. Just because you do not think it is important does not mean it should not be communicated, as I can assure you that the offeror will think it is important.
This “non-important” deficiency or weakness could be the one differentiator that the offeror needs to be selected for an award. Protests can be put soundly in the “sour grapes” category and never be sustained through following processes to the letter, ensuring the contract award is properly documented, and proactive communications to provide transparency and confidence in the contract award decision.
Best Practices for Industry
Do not be satisfied with the “no phone calls or emails” attitude of some procurement officials. Transparency needs to be demanded, especially when it is not forthcoming.
GSA’s defense in the protest decision is common, not to mention alarming. How many times are clarifications actually discussions, but never discovered?
Companies need to be diligent and keep an eye on the contract award process to ensure competitors are not being given an upper hand unfairly. That does not mean harass extremely busy contracting personnel, but again, don’t be satisfied if you encounter a “closed door” policy.
Seems like this is also an opportunity to make sure you put that information out there for everyone. Perhaps log every conversation like this in a portal that all vendors could see for latest updates
One of the things that is simple, but not easy, is sticking with the rules you set out in your evaluation plan and evaluation criteria. .The minute you start inventing logic or parsing words to explain why you had to change how you said you were going to evaluate ….you are in big trouble. Saying this, it is truly hard to keep evaluators, managers, executives, stakeholders and others involved in the process from wandering off the reservation and creating grounds for a protest. Look at Jaime’s last paragraph. Now that dollars once again are getting tight and opportunities fewer, I betcha the vendor community’s due dilegence efforts will increase…and friends, let me share with you that “discovery” unearths some mighty interesting and embarrassing information. Cheers and have a great holiday. See you in the trenches tomorrow. Pete